American Iron and Steel Institute v. E.P.A., s. 75-2124
| Citation | 543 F.2d 521 |
| Decision Date | 05 October 1976 |
| Docket Number | Nos. 75-2124,75-2148,s. 75-2124 |
| Parties | , 6 Envtl. L. Rep. 20,779 AMERICAN IRON AND STEEL INSTITUTE, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NATIONAL STEEL CORPORATION et al., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
David McNeil Olds, Blair S. McMillin, Thomas C. Wettach, Thomas J. Duman, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., David S. Watson, Peter G. Veeder, Frank J. Clements, Thorp, Reed & Armstrong, Pittsburgh, Pa., Max N. Edwards, Richard E. Schwartz, Collier, Shannon, Rill & Edwards, Washington, D. C., Richard E Peter R. Taft, Asst. Atty. Gen., Alfred T. Ghiorzi, Donald W. Fowler, Dept. of Justice, Robert V. Zener, Gen. Counsel, Ridgway M. Hall, Jr., Special Asst. to the Gen. Counsel, Environmental Protection Agency, Washington, D. C., for respondent.
Nolan, Henry H. Korn, Davis, Polk & Wardwell, New York City, for petitioners.
Robert C. Barnard, Charles F. Lettow, Edward G. Modell, Washington, D. C., for amici curiae Diamond Shamrock Corp., et al., Cleary, Gottlieb, Steen & Hamilton, Washington, D. C., of counsel.
Before ADAMS, ROSENN and GARTH, Circuit Judges.
This petition seeks our review of certain regulations issued by the Environmental Protection Agency (EPA). The challenged regulations under certain circumstances allow adjustments to be made in permitted discharges if significant amounts of pollutants are found in a plant's intake water. Concluding that the statute which governs our jurisdiction does not provide for review of these regulations at this time, we dismiss the petition and accordingly do not reach the merits of petitioners' arguments.
The American Iron and Steel Institute (AISI), a trade association of iron and steel manufacturers and producers, and National Steel Corporation, a member of AISI, have petitioned this Court to review certain regulations, 40 C.F.R. §§ 125.24(c) 1 and 125.28 2 (the "Net-Gross Regulations") promulgated by EPA pursuant to the Federal Water Pollution Control Act Amendments of 1972 (the Act), 33 U.S.C. §§ 1251-1376 (Supp.1976). These regulations provide, among other things, that effluent limitations 3 must be expressed in gross terms, but may be adjusted for some individual point sources which are unable to meet the required standards because of the presence of pollutants in intake water. Petitioners argue that these regulations are unconstitutional 4 and that their issuance was not authorized by the Act. They also contend that various provisions of the regulations are arbitrary, capricious, and not based on adequate evidence in the record. 5
The same "net-gross" controversy presented here was previously addressed (together with other issues) in American Iron and Steel Institute v. EPA, 526 F.2d 1027 (3d Cir. 1975) (AISI I ). There the Court reviewed the Effluent Guidelines and Standards for the Iron and Steel Manufacturing Point Source Category, 40 C.F.R. § 420 (1975). For reasons unrelated to the issues raised by the present petition, the regulations considered in AISI I were remanded to the agency for reconsideration and for promulgation of effluent limitation guidelines. 6
The petitioners in AISI I argued, as do the petitioners here, that the issuance of effluent limitations expressed in gross terms violated the fifth amendment's due process clause and that their promulgation was beyond the authority granted to EPA by the Act. They maintained that all effluent limitations must be expressed in net terms, i. e., that all pollutants present in the intake water must be subtracted from the gross amounts of pollutants discharged after processing and that only the net (the difference between these figures) could be regulated. In AISI I, that argument was answered by the Court's statement that while it was neither practical nor necessary to convert all effluent limitations to net terms, "any individual point source should be entitled to an adjustment in an effluent limitation applicable to it if it can show that its inability to meet the limitation is attributable to significant amounts of pollutants in the intake water." 526 F.2d at 1056. 7
Because these regulations were not before us in AISI I (see n. 6 supra ) it would appear appropriate for us to meet the merits of petitioners' arguments at this time were it not for the jurisdictional considerations raised by EPA. If we are without jurisdiction to review the challenged regulations, then we can only "announce that fact and do no more." Local 1498, American Federation of Government Employees v. American Federation of Government Employees, 522 F.2d 486, 492 (3d Cir., 1975). Hence, such a determination would preclude our reaching and deciding the substance of petitioners' claims.
EPA has maintained throughout these proceedings that we have no jurisdiction to review the Net-Gross Regulations in the absence of action by the Administrator issuing or denying a permit. 33 U.S.C. § 1369(b)(1)(F) (Supp.1976). Since no permit has either been issued or denied, EPA initially sought to dismiss the petition by motion. When that motion was referred to this panel, EPA then vigorously argued before us that the petition should be dismissed because the statute provides no grant of jurisdiction whereby we may consider the petitioners' contentions. We therefore turn to this threshold jurisdictional argument.
Petitioners claim that we have jurisdiction to review the Net-Gross Regulations under 33 U.S.C. § 1369(b)(1)(E) (Supp.1976). 8 The relevant portion of subsection (b)(1)(E), which they claim provides jurisdiction in this Court, reads: "Review of the Administrator's action . . . in approving or promulgating any effluent limitation . . . may be had . . . in the . . . Court of Appeals of the United States . . .." 9 Focusing on the review afforded to an effluent limitation, the petitioners argue that the Net-Gross Regulations constitute effluent limitations or at least effluent limitation guidelines.
EPA, on the other hand, has consistently argued that the Net-Gross Regulations do not constitute effluent limitations or guidelines but rather relate solely to the terms and conditions specified in permits issued to individual point sources. EPA substantiates this argument by pointing to the fact that when it promulgated the Net-Gross Regulations it cited as its authority only sections of the Act concerned with the permit system, 10 and not sections relating to effluent limitations.
In support of their jurisdictional contention that review in this Court is presently available, petitioners first argue that EPA's characterization of the Net-Gross Regulations as "something other than effluent limitations" should not be given conclusive effect. This characterization arises from the authority cited by EPA in support of its issuance of the Net-Gross Regulations. EPA cited as its authority three particular sections of the Act which pertain only to the permit system rather than to the promulgation of effluent limitations (See n. 10 supra ).
We agree with petitioners that an agency's interpretation of the law which governs our jurisdiction is not entitled to deference. Western Union Telegraph Co. v. FCC, 541 F.2d 346, at 356-357 (3d Cir., filed July 28, 1976) (Garth, J., dissenting). But we believe that when an agency employs its special knowledge and expertise in construing significant terms of the act which it administers, particularly terms of art such as "effluent limitation", the agency's interpretation is then entitled to considerable deference. Here, EPA is not construing our powers of review as such, but has rather provided us with its interpretation of what is or what is not an effluent limitation. In such a case, while EPA's interpretation is not conclusive for jurisdictional purposes, Columbia Broadcasting System v. United States, 316 U.S. 407, 416, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942), we would be remiss not to give deference to its interpretation that the term "effluent limitation" does not include the Net-Gross Regulations. See also Bethlehem Steel Corp. v. EPA, 538 F.2d 513, 518 (2d Cir., 1976).
Petitioners' next argument refers us to the definition of effluent limitation, which reads:
The term "effluent limitation" means any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance.
33 U.S.C. § 1362(11). Their argument continues that
Inasmuch as a net or gross regulation defines the quantity and rate of discharge, the Net-Gross Regulations meet the Act's definition of an "effluent limitation" and as such, are an exercise of the Administrator's power to establish effluent limitations under §§ 301 and 306 of the Act.
Petitioners' Brief at 13. In essence, the petitioners contend that the Net-Gross Regulations are such an integral part of the effluent limitations for the various point sources that the Net-Gross Regulations themselves must be considered as effluent limitations, and as such are reviewable. They articulate two reasons for reaching this result.
First, the petitioners claim that they can neither know the content of a particular effluent limitation nor can they comply with it unless and until they are advised as to the credit given for pollutants found in intake waters. When that credit is subtracted from the gross effluent limitation, in effect a "new" effluent limitation results. Hence, claim petitioners, this operation of the Net-Gross Regulations necessarily requires that the Regulations be regarded as effluent limitations.
Second, they point out that without the adjustments provided by the Net-Gross Regulations, effluent limitations expressed...
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